PROCEEDING ON CERTIORARI William C. Birdsall, District Judge
H. Balderas, Attorney General Kenneth H. Stalter, Assistant
Attorney General Santa Fe, NM for Petitioner
Bennett J. Baur, Chief Public Defender Mary Barket, Assistant
Appellate Defender Santa Fe, NM for Respondent
JIMENEZ MAES, JUSTICE
In this case we address an issue of first impression: whether
evidence of non- violent crimes committed in the presence of
a police officer after an unconstitutional traffic stop must
be suppressed under the Fourth Amendment of the United States
Constitution (Fourth Amendment) and Article II, Section 10 of
the New Mexico Constitution (Article II, Section 10).
Defendant Edward Tapia, Sr. entered a conditional plea of
guilty to one count of forgery, for signing his brother's
name to a traffic citation charging failure to wear a seat
belt in a motor vehicle, and reserved his right to appeal.
See State v. Tapia, 2015-NMCA-055, ¶¶ 1,
5, 348 P.3d 1050. He appealed to the Court of Appeals which
reversed his conviction. Id. ¶ 1. The State
petitioned for a writ of certiorari, which we granted.
See Rule 12-502 NMRA.
Facts and Procedure
Because Defendant entered a conditional guilty plea, there
was no trial.
the facts are taken from the suppression hearing, the
findings of fact and conclusions of law entered by the
district court, and the plea hearing. On August 8, 2012,
Defendant and his companions were traveling westbound on U.S.
Highway 64 toward Farmington, in San Juan County. Defendant
was a passenger in the back seat of the car. New Mexico State
Police Officer Tayna Benally stopped the car because it was
going forty miles per hour in a fifty-five-mile-per-hour zone
and because she was unable to read the license plate. After
contacting the driver, Benally noticed Defendant was not
wearing a seat belt. When asked about this, Defendant told
Benally he was wearing a lap belt. Benally asked him to lift
his shirt so she could verify he was wearing a lap belt.
Defendant complied and lifted his shirt, and Benally observed
he was not wearing a lap belt. At this point, Benally asked
Defendant for his driver's license. Defendant said he
didn't have any identification. Benally then asked
Defendant to write down his name, date of birth, and social
security number. He wrote down "Robert Tapia DOB
03/22/1968" and said he did not know his social security
Benally contacted San Juan County Dispatch and asked for a
description of Robert Tapia. The description given was
inconsistent with Benally's observations of
Defendant's appearance. Despite the inconsistencies,
Benally issued a "no seat belt" citation for Robert
Tapia, and Defendant signed the citation as Robert Tapia.
While Benally was dealing with Defendant, another officer at
the scene spoke with a second male passenger. The second
passenger informed the second officer that Defendant's
real name was Edward Tapia. The second officer had Defendant
exit the car and confirm his name. Defendant said his name
was Robert Tapia but then restated his birth date as March
22, 1974. The second officer informed Benally of what the
second passenger had told him, and Benally then arrested
Defendant for concealing identity. Later, at the jail,
Defendant's real identity was confirmed as Edward Tapia.
His birth date and social security number were also
confirmed, and Benally discovered there was an outstanding
warrant for Defendant's arrest for failing to appear at
the San Juan Magistrate Court in Aztec, New Mexico.
Defendant was charged with forgery, contrary to NMSA 1978,
Section 30-16-10(A) (2006); concealing identity, contrary to
NMSA 1978, Section 30-22-3 (1963); and seat belt violation,
contrary to NMSA 1978, Section 66-7-372(A) (2001).
Defendant filed in the Eleventh Judicial District Court a
motion to suppress all evidence obtained by Benally,
challenging the constitutionality of the traffic stop. The
district court heard the motion to suppress, held that the
traffic stop was unlawful because the driver had made no
moving violations and the license plate was concededly
visible to the officer, and suppressed the evidence of the
seat belt violation. However, the evidence of concealing
identity and forgery was not suppressed. The district court
found that those crimes "had not yet been committed at
the time of the stop, " that "[e]vidence of those
crimes did not exist at the time of the stop, " and
concluded that "an unlawful stop does not justify the
commission of new crimes."
Defendant entered a conditional guilty plea to the forgery
charge, admitted to two prior offenses for habitual
sentencing purposes, and reserved the right to appeal the
suppression issue as to both forgery and concealing identity.
The district court accepted the plea and sentenced Defendant
to eighteen months in the Department of Corrections, with all
but forty-five days of the sentence suspended in favor of
unsupervised probation. Pursuant to the plea, the Defendant
appealed his conviction to the Court of Appeals.
The Court of Appeals reversed the ruling of the district
court and held that "the commission of a non-violent,
identity-related offense in response to unconstitutional
police conduct does not automatically purge the taint of the
unlawful police conduct under federal law."
Tapia, 2015-NMCA-055, ¶ 17. The Court of
Appeals then engaged in an attenuation analysis and held that
"the discovery of the evidence of concealing identity
and forgery was not sufficiently removed from the taint of
the illegal stop to justify admitting the evidence
notwithstanding the exclusionary rule." Id.
¶ 19. Concluding that the crimes of concealing identity
and forgery should have been suppressed under the Fourth
Amendment, the Court of Appeals did not reach defendant's
state constitutional claim. Id. ¶ 20.
The State petitioned for certiorari to review the issue of
whether a new crime exception to the exclusionary rule, which
this court has previously recognized for violent crimes, also
applies to non-violent, identity-related crimes. See
N.M. Const. art. VI, § 3; NMSA 1978, § 34-5-14
(1972); Rule 12-502. We granted certiorari under Rule
12-502(C)(2)(d)(iii) as this case presents a significant
Standard of Review
"In reviewing a trial court's denial of a motion to
suppress, we observe the distinction between factual
determinations which are subject to a substantial evidence
standard of review and application of law to the facts[, ]
which is subject to de novo review." State v.
Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d
442 (alteration in original) (internal quotation marks and
citation omitted). The district court made findings of facts
and conclusions of law. The parties do not dispute the
pertinent facts, only the application of law to those facts;
therefore, our review is de novo. Id. ¶ 19;
see State v. Pierce, 2003-NMCA-117, ¶¶ 1,
10, 134 N.M. 388, 77 P.3d 292 (stating that when the facts
are not in dispute on a motion to suppress, we determine
whether the law was correctly applied to those facts).
The State argues that the new crime exception to the
exclusionary rule does not make a categorical distinction
between violent and non-violent crimes and that the potential
deterrence of unlawful searches and seizure by the State is
outweighed by the cost of excluding evidence of identity
crimes. Defendant asks this Court to affirm the Court of
Appeals ruling that the crimes of concealing identity and
forgery should have been suppressed under the Fourth
Amendment and asks alternatively for suppression under
Article II, Section 10.
Under the interstitial approach adopted in State v.
Gomez, 1997-NMSC-006, ¶ 21, 122 N.M. 777, 932 P.2d
1, we ask "first whether the right being asserted is
protected under the federal constitution. If it is, then the
state constitutional claim is not reached." Id.
¶ 19. If it is not, we examine the state constitutional
claim. Id. However, "we may diverge from
federal precedent where the federal analysis is flawed, where
there are structural differences between the state and
federal governments, or because of distinctive New Mexico
characteristics." State v. Garcia,
2009-NMSC-046, ¶ 27, 147 N.M. 134, 217 P.3d 1032 (citing
Gomez, 1997-NMSC-006, ¶ 19).
A.Attenuation Doctrine and the New Crime